Tuesday, June 27, 2017

Trial Series: How to subpoena federal agents (part two)

In the first
part of this post, we dealt with how to comply with the administrative
regulations for issuing and serving a subpoena on a federal employee. In this
part, we discuss what to do if the employee’s agency refuses or ignores your
request.

In short, the
answer is to file a motion to compel. As part of that motion, you must
demonstrate that you have first complied with Touhy regulations — i.e., served the correct person with the
correct document. Failure to do so will require the district court to deny the
motion: “Our record shows no effort by defendant to submit the affidavit or
statement summarizing the testimony desired so that the Department could
consider the request and determine whether to grant permission for the
testimony…” so there was no “error in the court’s refusal to require testimony
by the [employee].” United States v.
Allen, 554 F.2d 398, 406 (10th Cir. 1977). Only by showing that you have
complied with these procedures at the outset will the court be in a position to
determine whether it “should have rejected a refusal by the Department due to
the constitutional guarantees of the Fifth and Sixth Amendments.” Id. at 407.

Assuming you
have demonstrated compliance with Touhy’s
initial requirements, your motion to compel must also show that the evidence
sought by the subpoena is material to your defense. See United States v. Rivera, 412 F.3d 562, 569 (4th Cir. 2005).
This is the same standard that you had to satisfy to get the subpoena from the
district court in the first place under Federal Rule of Criminal Procedure 17,
so this should not be too tall of a hurdle.

If the
department refuses your request outright, you should also make an argument
under the Administrative Procedures Act, 5 U.S.C. §§ 701-706. Under the Act,
federal courts have the authority to set aside any agency decision that is
“arbitrary, capricious, an abuse of discretion,” or otherwise unlawful,
including one that violates a “constitutional right, power, privilege, or
immunity.” 5 U.S.C. § 706(2)(A)-(b). If the court concludes that the agency’s
refusal meets any of these definitions, then it may “compel agency action
unlawfully withheld… .” 5 U.S.C. § 706(1). These provisions allow you to
incorporate your most powerful arguments — your client’s Fifth Amendment right
to due process and Sixth Amendment right to compulsory process — directly into
your statutory argument.

Complying with Touhy may seem intimidating at first
blush. No one relishes paging through CFRs and attempting to decipher them. But
they are not as complicated as they might appear. All you must do is write a
letter, explain why you want a witness or document, wait for the letter to be
ignored or refused, and then draft a motion to compel. As long as you’ve
written the right letter and sent it to the right person, a court will rarely
deny a request for evidence that is material to your defense.